Jamie Huber v. Simons Agency Inc ( 2023 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 22-2483
_____________
JAMIE HUBER, individually and on
behalf of all others similarly situated
v.
SIMON’S AGENCY, INC.,
Appellant
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-19-cv-01424)
District Judge: Honorable Anita B. Brody
_______________
Argued April 25, 2023
Before: KRAUSE, BIBAS, and RENDELL, Circuit Judges.
(Opinion filed: October 12, 2023)
Yitzchak Zelman [ARGUED]
Ari H. Marcus
Marcus & Zelman
701 Cookman Avenue
Suite 300
Asbury Park, NJ 07712
Counsel for Appellee
David B. Shaver [ARGUED]
Surdyk Dowd & Turner
8163 Old Yankee Street
Suite C
Dayton, OH 45458
Counsel for Appellant
_______________
OPINION OF THE COURT
_______________
KRAUSE, Circuit Judge.
Since it entered the scene in 1989, the informational
injury doctrine of Article III standing has generated its share of
confusion, and with each new case, its contours have come into
sharper focus. In this case, Appellee Jamie Huber and the class
of consumers she seeks to represent brought suit under the Fair
Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692–
1692p, after receiving confusing collection letters from
Appellant Simon’s Agency, Inc. (SAI). The District Court
agreed the letters were “misleading and deceptive” in violation
of the Act, certified the class, and granted summary judgment
in its favor. App. 41. It also rejected SAI’s jurisdictional
challenge to the plaintiffs’ standing under Article III, holding
that while confusion from the letter, without more, would not
suffice, Huber had standing under the informational injury
doctrine because she suffered a concrete financial consequence
as a result of her confusion, and the other class members had
standing under “the same theory” because they “inevitably”
could be expected to suffer the same harm. App. 48.
We agree with the District Court that Huber has
standing, but not under the informational injury doctrine. After
the District Court rendered its ruling, we decided Kelly v.
RealPage Inc., which clarified that a plaintiff who seeks to
establish standing based on an “informational injury” must
identify “omitted information to which she has entitlement[.]”
47 F.4th 202, 213 (3d Cir. 2022). Huber did not do so and,
therefore, did not suffer an informational injury.
But she does have standing on a different basis—that
the financial harm she suffered in reliance on the letter bears a
“close relationship” to the harm associated with the tort of
fraudulent misrepresentation. Spokeo, Inc. v. Robins, 578 U.S.
330, 341 (2016). If the other proposed class members can also
make that showing, they, too, will have standing, but confusion
2
alone does not constitute concrete injury, and the present
record does not reflect whether any of the class members
suffered any consequences beyond confusion.
For these reasons, we will affirm the District Court’s
determination that SAI’s letter violated the FDCPA, 15 U.S.C.
§ 1692e, and that Huber herself has standing, but we will
remand for the District Court to consider the extent to which
unnamed class members may have standing to “recover
individual damages,” TransUnion LLC v. Ramirez, 141 S. Ct.
2190, 2208 (2021), and the implications of that determination
for class certification under Federal Rule of Civil Procedure
23(b)(3).
I. Factual and Procedural Background
A. Huber’s Dealings with SAI
In 2018, Huber visited doctors in the Crozer Health
Network (Crozer) on four separate occasions. As a result, she
incurred the following debts to Crozer: $178 on February 9,
$78 on February 22, $83.50 on March 27, and $178 on May
22. Crozer contracted with SAI—a debt collection agency that
specializes in medical billing—to collect outstanding bills
from Huber and other patients. Whenever Crozer placed a debt
with SAI, SAI sent a form collection letter to the debtor. That
letter set out an “Account Summary” that provided the debtor
with two figures: in one box, the specific debt SAI sought to
collect, entitled “Amount,” and in another box, a second figure,
entitled “Various Other Acc[oun]ts Total Balance.” App. 7.
By way of example, the fourth such letter Huber received
between May and September of 2018—one for each of her
debts to Crozer—appeared as follows:
3
Thus, the “Account Summary” informed Huber that she owed
an “Amount” of $178, while her “Various Other Accounts
Total Balance” was listed at $517.50. Id.According to her deposition testimony, Huber was
confused after reading the letter as to how much she owed in
total: Was it $695.50 (the sum of the “Amount” and “Various
Other Accounts Total Balance”) or $517.50 (just the “Various
Other Accounts Total Balance”)? Uncertain which amount
was due, she paid neither. Instead, she sent the letter to a
financial advisor she had retained to help her “take care of [her]
financial situation.” App. 111.
B. The Proceedings Below
Huber filed this putative class action against SAI in
2019 alleging, among other things, that the fourth collection
letter constituted a “false, deceptive, or misleading” means of
collecting a debt in violation of 15 U.S.C. § 1692e. Huber also
alleged that SAI’s letter failed to disclose the “amount of the
debt” as required by 15 U.S.C. § 1692g(a)(1). But the District
Court remarked that the letter straightforwardly stated that the
“Amount” of Huber’s fourth debt was $178, so there was no
actionable failure to disclose. Accordingly, the Court granted
summary judgment in favor of SAI on Huber’s § 1692g(a)(1)
claim, and Huber does not challenge that ruling on appeal.
Following discovery, both parties moved for summary
judgment on Huber’s § 1692e claim, and Huber prevailed.
Applying our Court’s objective “least sophisticated debtor
standard,” App. 17, the District Court observed such a debtor
could reasonably read SAI’s collection letter in two ways: the
4
recipient’s total debt could be either the sum of the “Amount”
and the “Various Other Accounts Total Balance,” or the latter
already representing that sum. Because the former reading is
inaccurate—the “Various Other Accounts Total Balance” in
fact represents the total debt—the District Court ruled that
SAI’s form letter was indeed deceptive and therefore violated
§ 1692e as a matter of law.
Claiming that hundreds of other debtors were also
subject to this violation, Huber moved to certify a class under
Federal Rule of Civil Procedure 23(b)(3). Her proposed class
consisted of “all consumers in Clifton Heights, PA (1) who
received a [form] Collection letter from the Defendant (2)
containing a reference to ‘Various Other Accounts[,’] (3) on an
obligation owed or allegedly owed to Crozer, (4) during the
time period of April 4, 2018 to May 30, 2018.” App. 28. The
District Court granted that motion, holding the proposed class
satisfied the numerosity, commonality, typicality, and
adequacy requirements of Rule 23(a), and the predominance
and superiority requirements of Rule 23(b)(3).
SAI, now facing class-wide liability, moved for
reconsideration on the ground that Huber and the unnamed
members of her class had not suffered a concrete injury for
purposes of Article III standing. The District Court disagreed.
Correctly observing that this Court “ha[d] not [yet] issued a
precedential opinion on injury-in-fact stemming from the
misleading communications of debt collectors,” App. 45, the
District Court thoughtfully sought to determine what
constitutes such an injury in the FDCPA context. It did so
under the auspices of the “informational injury doctrine.”
Because we had treated improper disclosures of private
information as concrete, if intangible, informational injuries in
prior FDCPA cases, the District Court inferred that the
dissemination of misleading information likewise should be
viewed as a species of informational harm—at least where that
that misleading information “influences a plaintiff’s credit or
management of their debt.” App. 46. For this intangible harm
to be concrete, it recognized, “confusion itself is not enough,”
App. 47; rather, the plaintiff must have engaged in
“consequential action or inaction following receipt of [the]
misleading or deceptive collection letter,” App. 47. Such
5
action could “lead[] a plaintiff to pay extra money, affect[] a
plaintiff’s credit, or otherwise alter[] a plaintiff’s response to a
debt.” App. 46 (quoting Markakos v. Medicredit, Inc., 997
F.3d 778, 780 (7th Cir. 2021)).
On that basis, the District Court concluded that Huber
had standing because “[s]he was not merely confused or
anxious,” but also suffered two types of “financial
consequences” as a result of her confusion: (1) “seeking
assistance from a professional to figure out how to interpret the
letter and how to handle her debt”; and (2) being “unable to
pay down her debts or otherwise take appropriate action (other
than turning to a third party at her own additional cost) because
of the misinformation in SAI’s letter.” App. 47–48. As for
the other class members, the District Court extrapolated that
they all had standing under “the same theory of harm” because
they received the same confusing letter from SAI, and “being
provided with misleading or deceptive information about a
debt” would “inevitably” prevent each member’s “appropriate
action to manage their debt.” App. 48. The District Court
therefore denied SAI’s motion for reconsideration.
Ten days later, the parties stipulated to the statutory
damages Huber and the class would receive under the FDCPA
if the District Court’s rulings were upheld on appeal. Huber
would receive $1,000 in statutory damages; the unnamed class
members would collectively receive $5,000 in statutory
damages to be “distributed on a pro rata basis”; and Huber
would also receive a $5,000 service award “for her work in
representing the class over the past three years.” 1 Id. at 52–53.
1
The parties recognized that these damages awards
“represent[ed] the maximum amount of statutory damages
available” under the FDCPA. App. 52. That is because, “in
the case of a class action,” the FDCPA permits “each named
plaintiff” to recover “damages as the court may allow, but not
exceeding $1,000” and “such amount as the court may allow
for all other class members, without regard to a minimum
individual recovery, not to exceed the lesser of $500,000 or 1
per centum of the net worth of the debt collector.” 15 U.S.C.
§ 1692k(a)(2). Prevailing plaintiffs are also entitled to costs
and attorney’s fees, so long as they are “reasonable . . . as
determined by the court.” Id. § 1692k(a)(3).
6
The District Court entered the stipulation as a final appealable
order, and SAI timely appealed.
II. Jurisdiction and Standard of Review
The District Court had putative jurisdiction under 28
U.S.C. § 1331 and 15 U.S.C. § 1692k(d). We have jurisdiction
under 28 U.S.C. § 1291, which includes our “jurisdiction to
determine our own jurisdiction.” United States v. Kwasnik, 55
F.4th 212, 215 (3d Cir. 2022).
Our review of an order granting summary judgment “is
plenary, meaning we review anew the District Court’s
summary judgment decision[], applying the same standard it
must apply.” Ellis v. Westinghouse Elec. Co., LLC, 11 F.4th
221, 229 (3d Cir. 2021). Summary judgment is appropriate
when “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a).
Our review of class certification orders, on the other
hand, is for abuse of discretion, “which occurs if the district
court’s decision rests upon a clearly erroneous finding of fact,
an errant conclusion of law or an improper application of law
to fact.” Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 590
(3d Cir. 2012) (quotation omitted). In assessing whether a
district court applied the correct legal standard during class
certification, we exercise de novo review. Id.Finally, we review denials of motions for
reconsideration for abuse of discretion. United States ex rel.
Ascolese v. Shoemaker Constr. Co., 55 F.4th 188, 193 (3d Cir.
2022). When a district court’s “denial is based on legal issues,
we review that determination de novo. However, factual
findings are reviewed for clear error.” Gibson v. State Farm
Mut. Auto. Ins. Co., 994 F.3d 182, 186 (3d Cir. 2021) (citation
omitted).
III. Discussion
We begin as “we must begin every case: with the
question of jurisdiction.” Gayle v. Warden Monmouth Cnty.
Corr. Inst., 838 F.3d 297, 303 (3d Cir. 2016). Because a
7
plaintiff’s standing implicates this Court’s Article III
jurisdiction, we will address that as a “threshold matter,” St.
Pierre v. Retrieval-Masters Creditors Bureau, Inc., 898 F.3d
351, 356 (3d Cir. 2018), before turning to the merits of Huber’s
FDCPA claim and SAI’s challenges to her class action.
A. Huber’s Article III Standing
While we agree with the District Court’s determination
that Huber herself has Article III standing, we reach that
conclusion on different grounds. Below, we address (1) the
requirements of standing and the informational injury doctrine;
(2) why that doctrine is inapplicable to Huber’s case; and (3)
why Huber nonetheless has standing under traditional standing
principles.
1. The “Informational Injury” Doctrine
To establish standing under Article III, a plaintiff must
show that she suffered: “(1) an injury-in-fact; (2) that is fairly
traceable to the defendant’s challenged conduct; and (3) that is
likely to be redressed by a favorable judicial decision.” Id.(citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 590 (1992)).
The injury-in-fact requirement “preserves the vitality of the
adversarial process,” Lujan, 504 U.S. at 581 (Kennedy, J.,
concurring in part and concurring in the judgment), by
ensuring the plaintiff has “a ‘personal stake’ in the case,”
TransUnion, 141 S. Ct. at 2203 (quoting Raines v. Byrd, 521
U.S. 811, 819 (1997)). Accordingly, her injury must be
“concrete,” i.e., “real, and not abstract.” Spokeo, 578 U.S. at
340 (quotations omitted).
In response to the proliferation of information as both
an engine of economic activity and fixture of daily life, the
Supreme Court acknowledged in two seminal opinions that
even the nondisclosure of information can sometimes
constitute a “concrete” injury. See Pub. Citizen v. DOJ, 491
U.S. 440, 448–49 (1989) (reasoning that the DOJ’s denial of
information on judicial candidates under consideration by the
ABA prevented plaintiffs from “participat[ing] more
effectively in the judicial selection process”); FEC v. Akins,
524 U.S. 11, 13–14, 21 (1998) (concluding that the FEC’s
8
“political committee” determination effectively exempting the
AIPAC from disclosing its membership, contributions, and
expenditures imperiled plaintiffs’ ability to “evaluate
candidates for public office”).
In the decades that followed, we had occasion to apply
that informational injury doctrine, but we did not expound on
its requirements. Last year, however, in Kelly v. RealPage,
Inc., we specified the criteria a plaintiff must meet to establish
an informational injury: “she [must be] denied information to
which she [is] legally entitled [by statute], and . . . the denial
[must] cause[] some adverse consequences related to the
purpose of the statute.” 47 F.4th at 212. Recognizing that the
Supreme Court had developed the informational injury
doctrine to address the distinctly modern needs of the
Information Age, we deemed that doctrine an exception to the
usual concreteness requirement that a plaintiff identify a close
historical or common-law analogue to her cause of action. See
id. at 212 n.8 (declining “to import a historical analogue
requirement into the standing analysis for informational injury
claims”).
But exceptions must be limited, lest they swallow the
rule. And, as we explained in Kelly, there is no more
fundamental limitation on the informational injury doctrine
than the need for a plaintiff to show “the denial of information
. . . to which she has entitlement.” Id. at 212–13. The Supreme
Court made that clear in TransUnion LLC v. Ramirez, when a
credit reporting agency had mailed plaintiffs credit files
omitting certain required information but sent them that
information in separate mailings. 141 S. Ct. at 2213. Those
plaintiffs had not suffered an informational injury because, the
Court explained, they “did not allege that they failed to receive
any required information.” Id. at 2214. In contrast, the
plaintiffs in Kelly established standing where they had
requested a file disclosure from a credit reporting agency
pursuant to the Fair Credit Reporting Act, the file produced by
the agency omitted information the statute required, and the
plaintiffs suffered the kinds of consequences that the disclosure
requirements were designed to prevent. See 47 F.4th at 214–
15.
9
In short, entitlement to the information allegedly
withheld is the sine qua non of the informational injury
doctrine.
2. Huber’s Injury Does Not Qualify As
“Informational Harm”
Kelly makes clear why the doctrine is inapplicable to
Huber: she has not alleged “the omission of information to
which [she] claim[s] entitlement[.]” 2 47 F.4th at 214. The very
reason the District Court granted summary judgment on
Huber’s § 1692g(a)(1) claim was that Huber had received all
the information to which she was entitled. That is,
§ 1692g(a)(1) required SAI to disclose “the amount of the
debt” for the specific service at issue in the letter, and the box
labeled “Amount” did so by telling Huber that she owed $178
for her fourth visit to Crozer. App. 6, 16. That conclusion not
only had obvious consequences for Huber’s § 1692g(a)(1)
claim, but also has consequences for her surviving § 1692e
claim because it forecloses the informational injury doctrine of
Article III standing. 3
Because she cannot identify a failure to disclose, Huber
urges us instead to extend the informational injury doctrine to
the failure to disclose clearly and effectively. In support of that
capacious theory, she cites decisions interpreting the scope of
debt collectors’ obligations under the FDCPA. But Huber’s
argument “confuses standing with the merits,” Frank v.
Autovest, LLC, 961 F.3d 1185, 1189 (D.C. Cir. 2020), as those
statutory decisions do not answer the constitutional question of
when a harm qualifies as an informational injury for purposes
of Article III. And constitutional decisions undermine Huber’s
2
We therefore need not address whether Huber demonstrated
“‘adverse effects’ that flow from [an] omission, and . . . the
requisite nexus to [a] ‘concrete interest’ Congress intended to
protect.” Kelly, 47 F.4th at 214.
3
As Huber does not contend that SAI’s letter provided
inaccurate information, whether a false disclosure amounts to
an omission for purposes of the informational injury doctrine
is not at issue here. Cf. Davidson v. Kimberly-Clark Corp., 889
F.3d 956, 971 (9th Cir. 2018).
10
proposed expansion of the doctrine. In TransUnion, for
example, the Supreme Court admonished that an informational
injury consists in the “fail[ure] to receive [legally] required
information,” not merely “receiv[ing] it in the wrong format.”
141 S. Ct. at 2214; see also Trichell v. Midland Credit Mgmt.,
Inc., 964 F.3d 990, 1004 (11th Cir. 2020) (reasoning the
informational injury doctrine was inapt when plaintiffs were
not “denied desired information, but [instead] . . . received
unwanted communications that were misleading”).
Simply put, unclear disclosures do not equate to outright
omissions. Opening the courthouse doors whenever required
disclosures could arguably be clearer would vitiate the
concrete injury requirement in almost any case involving
information. Neither we nor the Supreme Court has suggested
that the informational injury doctrine stretches so far, and we
reject that proposition today. Because Huber has not alleged
that SAI omitted information to which she was entitled, she did
not suffer an informational injury.
3. Huber Has Standing Under Traditional
Standing Principles
The informational injury doctrine, however, is just one
path to standing, and an exceptional one at that. So having
ruled it out in Huber’s case, we must also consider the more
traditional path prescribed by the Supreme Court in
TransUnion: whether an alleged injury “has a ‘close
relationship’ to a harm ‘traditionally’ recognized as providing
a basis for a lawsuit in American courts.” 141 S. Ct. at 2204
(quoting Spokeo, 578 U.S. at 341).
In that case, the Court considered the standing of a
purported class of consumers claiming that TransUnion “failed
to ‘follow reasonable procedures to assure maximum possible
accuracy’ of the plaintiffs’ credit files” in its possession, in
violation of the Fair Credit Reporting Act, by including alerts
in the consumers’ files that erroneously labeled them as
potential terrorists on a government watchlist. Id. at 2208
(quoting 15 U.S.C. § 1681e(b)). Because “[e]very class
member must have Article III standing in order to recover
individual damages,” id., the Court considered separately those
class members whose credit files had been transmitted to third
11
parties and those whose credit files were maintained by
TransUnion but had not been disseminated. Id. at 2208–09.
Class members in the first category had standing, the
Court concluded, because they “suffered a harm with a ‘close
relationship’ to the harm associated with the tort of
defamation.” Id. Specifically, the Court explained that “the
harm from a misleading statement of this kind [i.e., actually
disseminated] bears a sufficiently close relationship to the
harm from a false and defamatory statement” to satisfy Article
III’s concrete injury requirement. Id. at 2209. In contrast,
those whose credit files contained the same misleading
statement but were not disseminated lacked standing because
the “retention of information lawfully obtained, without further
disclosure, traditionally has not provided the basis for a lawsuit
in American courts.” Id. (quotation omitted). Although
Congress intended “to assure maximum possible accuracy” of
both categories of credit files, 15 U.S.C. § 1681e(b), the mere
presence of “misleading information in the internal credit files”
did not qualify as a “concrete harm” sufficient to support
standing, TransUnion, 141 S. Ct. at 2210.
That distinction brought needed clarity to the proper
treatment of Article III standing. Before TransUnion, courts
sometimes conflated the concepts of “statutory” or
“prudential” standing with Article III standing by failing to
distinguish between “(i) a plaintiff’s statutory cause of action
to sue a defendant over the defendant’s violation of federal
law,” i.e., the merits of a plaintiff’s claim, with “(ii) a plaintiff’s
suffering concrete harm because of [a] defendant’s violation of
federal law,” i.e., a particular plaintiff’s standing to bring that
claim. Id. at 2205. TransUnion put that confusion to rest,
explaining that Congress may create an “injury in law,” but for
an individual plaintiff to proceed in federal court, Article III
requires that she show her own “injury in fact.” See id. at
2205–06. As the Court explained, allowing “unharmed
plaintiffs to sue defendants who violate federal law not only
would violate Article III but also would infringe on the
Executive Branch’s Article II authority” to decide “how to
prioritize and how aggressively to pursue legal actions against
defendants who violate the law.” Id. at 2207.
12
But why not allow any plaintiff seeking to serve as
private attorney general to enforce the statutory right alongside
the Executive Branch? Because, the Court explained, in
contrast to federal agencies empowered to enforce statutory
rights, “[p]rivate plaintiffs are not accountable to the people
and are not charged with pursuing the public interest in
enforcing a defendant’s general compliance with regulatory
law.” Id. Thus, a private party may sue to enforce a statute
only when (1) Congress has authorized a private right of action,
and (2) the prospective plaintiff has established her own
individual standing under Article III, i.e., a “physical,
monetary, or cognizable intangible harm traditionally
recognized as providing a basis for a lawsuit in American
courts.” Id. at 2206.
When it comes to the FDCPA, Congress authorized
general enforcement by the Federal Trade Commission (FTC),
which may seek civil penalties for the dissemination of a
“false, deceptive, or misleading representation . . . in
connection with the collection of any debt.” 15 U.S.C.
§§ 1692e, 1692l(a); see also id. § 57b. And Congress also
provided a private right of action for individual plaintiffs. Id.
§ 1692k. But as TransUnion makes clear, “under Article III,
an injury in law is not an injury in fact. Only those plaintiffs
who have been concretely harmed by [the] defendant’s
statutory violation may sue that private defendant over that
violation in federal court.” 141 S. Ct. at 2205.
Helpfully, in clarifying the need for an injury-in-fact to
establish standing, the Court also clarified the nature of that
injury. To establish standing, a plaintiff must show that she
suffered an injury for which there exists a sufficiently “close
historical or common-law analogue.” Id. at 2204. While it is
not necessary to find “an exact duplicate in American history
and tradition,” id., or to show facts that would “give rise to a
cause of action under common law,” In re Horizon Healthcare
Servs. Inc. Data Breach Litig., 846 F.3d 625, 639 (3d Cir.
2017), the de jure injury must “‘protect essentially the same
interests’ as ‘traditional causes of action,’” Long v. Se. Pa.
Transp. Auth., 903 F.3d 312, 324 (3d Cir. 2018) (quoting
Susinno v. Work Out World Inc., 862 F.3d 346, 351 (3d Cir.
2017)).
13
Here, Huber asserts that the receipt of deceptive
collection letters meets that test because “the common law has
long reflected an interest in avoiding the harms inherent to
receiving misleading information.” Ans. Br. 34–35 (quoting
Cunningham v. Credit Bureau of Lancaster Cnty., Inc., No. 17-
cv-5102, 2018 WL 6062351, at *6 (E.D. Pa. Nov. 20, 2018)).
We take this as an oblique reference to the tort of fraudulent
misrepresentation and agree it is an apt analogue. Like
fraudulent misrepresentation, a § 1692e violation involves
deception, and the statutory prohibition on the use of “any
false, deceptive, or misleading representation or means in
connection with the collection of any debt,” 15 U.S.C. § 1692e,
“protect[s] essentially the same interests” as that “traditional
cause[] of action,” Long, 903 F.3d at 324 (quotation omitted).
But to establish standing, TransUnion requires more
than a statute’s analogue in a common-law action; it requires
that “the harm [the prospective plaintiff suffered as a result of
the statutory violation] bears a sufficiently close relationship to
the harm from [that common-law action].” 141 S. Ct. at 2209
(emphasis added). It was not sufficient in TransUnion that
Congress sought to protect the “maximum possible accuracy”
of all consumer credit files maintained by credit companies;
class members who were labeled potential terrorists but whose
credit files had not been disseminated to third parties had not
suffered any “concrete injury” because “[t]he mere presence of
an inaccuracy in an internal credit file, if it is not disclosed to
a third party, causes no concrete harm,” id. at 2210. Those
whose files were disseminated, on the other hand, had standing
because “the harm [they suffered] from a misleading statement
of [that] kind bears a sufficiently close relationship to the harm
from a false and defamatory statement.” Id. at 2209. Likewise,
in the FDCPA context, it is not sufficient for a debtor’s
standing that Congress sought to protect all debtors from the
receipt of false or misleading information from debt collectors;
each plaintiff asserting a § 1692e violation must establish that
“the harm [she suffered] from a misleading statement of this
kind bears a sufficiently close relationship to the harm from
[fraudulent misrepresentation].” Id.
Notably, however, the “harm traditionally recognized as
providing a basis for [fraudulent misrepresentation] in
American courts,” id. at 2206, is not the mere receipt of a
14
misleading statement, or even confusion, without any further
consequence. It is the “physical, monetary, or cognizable
intangible harm,” id., such as a reputational or emotional harm,
id. at 2208; Clemens v. ExecuPharm Inc., 48 F.4th 146, 155–
56 (3d Cir. 2022), that may follow from a plaintiff’s “reliance
upon the misrepresentation,” Restatement (Second) of Torts
§ 525 (Am. L. Inst. 1977) (emphasis added); see also John C.P.
Goldberg et al., The Place of Reliance in Fraud, 48 Ariz. L.
Rev. 1001, 1012 (2006) (“[U]nless and until a deception
occurs—unless and until there is reliance by the victim—the
tort of fraud has not been committed.”). The “mere risk” that
a plaintiff who receives a misleading letter from a debt
collector will suffer such a cognizable injury is “too
speculative to support Article III standing.” TransUnion, 141
S. Ct. at 2211–12.
We therefore agree with the District Court that
confusion, without more, is not a concrete injury. 4 Instead, to
analogize to the tort of fraudulent misrepresentation, a § 1692e
claimant must suffer some cognizable harm that flows from
that confusion. Namely, she must identify what the District
Court aptly described as a “consequential action or inaction
following receipt of a misleading or deceptive collection
letter[.]” App. 47. 5 Only then will her injury be of the “same
character” as the harm from fraudulent misrepresentation,
4
Our sister circuits are in agreement. See Perez v. McCreary,
Veselka, Bragg & Allen, P.C., 45 F.4th 816, 825 (5th Cir.
2022); Ward v. Nat’l Patient Acct. Servs. Sols., Inc., 9 F.4th
357, 363 (6th Cir. 2021); Brunett v. Convergent Outsourcing,
Inc., 982 F.3d 1067, 1068 (7th Cir. 2020); Bassett v. Credit
Bureau Servs., Inc., 60 F.4th 1132, 1137 (8th Cir. 2023);
Adams v. Skagit Bonded Collectors, LLC, 836 F. App’x 544,
547 (9th Cir. 2020); Shields v. Pro. Bureau of Collections of
Md., Inc., 55 F.4th 823, 830 (10th Cir. 2022); Trichell, 964
F.3d at 1004.
5
Cf. Shields, 55 F.4th at 830 (“Shields never pleaded reliance.
In other words, she did not allege the same kind of harm as
required by the tort of fraud.” (citation omitted)); Pierre v.
Midland Credit Mgmt., Inc., 29 F.4th 934, 939 (7th Cir. 2022)
(“[C]ritically, [the plaintiff] didn’t . . . act to her detriment in
response to anything in or omitted from the letter.”).
15
Thorne v. Pep Boys Manny Moe & Jack Inc., 980 F.3d 879,
890 (3d Cir. 2020) (quotation omitted), for only then will the
“interests” protected by her statutory cause of action align with
those of her common-law analogue, Long, 903 F.3d at 324(quotation omitted).
Huber has established that detrimental action for the
reasons the District Court adeptly summarized. She did not
merely suffer from confusion, but from two resulting “financial
consequences”: one in consulting with her financial advisor,
which the District Court found was “at her own additional
cost,” and the other in her failure to “pay down her debts or
otherwise take appropriate action” beyond that consultation. 6
App. 47–48. Those detrimental consequences are sufficiently
similar to the kind of harm protected by the tort of fraudulent
misrepresentation to establish Huber’s standing. 7
6
Judge Bibas would not read the record and statements at oral
argument as enough to show detrimental reliance. He does not
read the record as showing that Huber paid an incremental cost
to have her financial advisor help her with this letter. Thus, he
would find no standing. But because both of his colleagues
find standing here, he joins the rest of the opinion of the Court.
Cf. Hanover 3201 Realty, LLC v. Vill. Supermarkets, Inc., 806
F.3d 162, 196 (3d Cir. 2015) (Ambro, J., dissenting in part and
concurring in part).
7
Given the District Court’s findings, even SAI’s counsel
conceded Huber had demonstrated detrimental reliance
sufficient for individual standing:
Q: . . . [T]here are other ways you might
characterize what happened—like . . . she sent
these documents to her credit advisor and she did
testify that she paid for his services.
A: I’m not sure if she did or not. I think that was
presumed or implied in the record that she had
hired Mr. Ramsey, that she had paid him
something at some point.
Q: Why isn’t that enough? Let’s put the
concrete financial loss to the side but, just for
16
* * *
In sum, because we had not yet clarified the
informational injury doctrine in Kelly, the District Court
mistakenly believed Huber had standing as a result of an
informational injury. Nevertheless, “[w]e may affirm on any
basis supported by the record, even if it departs from the
District Court’s rationale.” TD Bank N.A. v. Hill, 928 F.3d 259,
270 (3d Cir. 2019). And here, tracking the common-law
analogy to fraudulent misrepresentation, Huber has identified
both an allegedly deceptive communication and specific
harmful action and inaction she took as a result of that
communication. She therefore suffered a concrete injury for
Article III purposes, and having “assure[d] ourselves of
[Huber’s] standing,” DiNaples v. MRS BPO, LLC, 934 F.3d
275, 279 (3d Cir. 2019), we can turn to the merits of her claim.
B. Fair Debt Collection Practices Act
To prevail on an FDCPA claim, a plaintiff must
establish that: “(1) she is a consumer, (2) the defendant is a
debt collector, (3) the defendant’s challenged practice involves
an attempt to collect a ‘debt’ as the [FDCPA] defines it, and
(4) the defendant has violated a provision of the FDCPA in
attempting to collect the debt.” St. Pierre, 898 F.3d at 358(quoting Douglass v. Convergent Outsourcing, 765 F.3d 299,
303 (3d Cir. 2014)). The first three elements are uncontested
here, so the only question for us is whether the District Court
correctly determined that SAI’s form letter transgresses the
FDCPA—specifically, the prohibition on the “use [of] any
false, deceptive, or misleading representation or means in
reliance, why aren’t those actions or omissions
sufficient to show reliance?
A: They might be, right? In Ms. Huber, we have
evidence of that . . .
Q: Just to be clear, do you concede for her
individual case that there is reliance?
A: Based on her testimony, she has said that she
relied to her detriment.
Oral Arg. at 21:04–22:29.
17
connection with the collection of any debt.” 15 U.S.C.
§ 1692e.
Like the District Court, we make that assessment
applying the “least sophisticated debtor” standard. Moyer v.
Patenaude & Felix, A.P.C., 991 F.3d 466, 470 (3d Cir. 2021)
(quoting Jensen v. Pressler & Pressler, 791 F.3d 413, 418 (3d
Cir. 2015)); see also Riccio v. Sentry Credit, Inc., 954 F.3d 582,
594 (3d Cir. 2020) (en banc). Under that test, we consider
“whether a debt collector’s statement in a communication to a
debtor would deceive or mislead the least sophisticated
debtor.” Jensen, 791 F.3d at 420. Because the standard is
objective, “the specific plaintiff need not prove that she was
actually confused or misled, only that the objective least
sophisticated debtor would be.” Id. at 419.
Although the least sophisticated debtor test “protects
naïve consumers, it also prevents liability for bizarre or
idiosyncratic interpretations of collection notices by preserving
a quotient of reasonableness and presuming a basic level of
understanding and willingness to read with care.” Wilson v.
Quadramed Corp., 225 F.3d 350, 354–55 (3d Cir. 2000)
(quotation omitted). Accordingly, we have held that a
collection letter is deceptive when “it can be reasonably read
to have two or more different meanings, one of which is
inaccurate.” Moyer, 991 F.3d at 470 (quoting Wilson, 225 F.3d
at 354).
Here, the District Court correctly observed that the
“Account Summary” in SAI’s form letter could be reasonably
interpreted in two ways because, without further explanation,
it sets out both an “Amount” and “Various Other Accounts
Total Balance.” App. 7, 17. Thus, a least sophisticated debtor
could read the latter as “Various Other Accounts Total
Balance,” meaning the sum total of her outstanding debt,
including the “Amount.” Alternatively, a least sophisticated
debtor could read it as “Various Other Accounts Total
Balance,” meaning she owes that figure in addition to the
“Amount.” So as SAI itself acknowledges, “[i]n a vacuum, the
Letter could reasonably be read to have the two meanings
ascribed by the District Court,” Opening Br. 30, and “one of
[them] is inaccurate,” Moyer, 991 F.3d at 470 (quotation
18
omitted). That is the very definition of a “deceptive”
communication, in violation of § 1692e.
SAI resists that conclusion by arguing that a debtor in
Huber’s situation would have deduced the meaning of
“Various Other Accounts Total Balance” by comparing the
fourth letter she received with the three prior collection letters
SAI sent her. See Opening Br. 31 (“Each correspondence was
about a separate account and the ‘Total Balance’ identified
increased each time by the amount owed for that specific
amount.”).
That argument highlights the open question whether the
least sophisticated debtor standard is “purely objective” or
instead “look[s] to what an objective debtor in [the plaintiff’s]
situation . . . would have thought or done,” Jensen, 791 F.3d at422 n.4, but it is not a question to answer today. SAI sent those
letters to Huber on May 24, June 14, and July 12, 2018—
months before it mailed her its fourth collection letter on
September 6, 2018, App. 281–84—and in the intervals
between the collection letters, a least sophisticated debtor “may
have lost the [prior letters] and forgotten the amount of the debt
completely,” Fields v. Wilber L. Firm, P.C., 383 F.3d 562, 566
(7th Cir. 2004); see also Lukawski v. Client Servs., Inc., No.
3:12-cv-02082, 2013 WL 4647482, at *3 (M.D. Pa. Aug. 29,
2013) (“[A] least sophisticated consumer, gullible, trusting,
and naïve . . . cannot be expected to recall . . . a collection letter
received six weeks prior to a current communication.”). So
even if we look beyond the four corners of SAI’s letter, we
would not expect a least sophisticated debtor in Huber’s
position to recall the precise figures in the prior letters, much
less understand clearly what amount was due.
In short, whether we examine the fourth collection letter
from the perspective of a purely objective least sophisticated
debtor or a least sophisticated debtor in Huber’s position,
SAI’s letter is “deceptive” for purposes of § 1692e. We
therefore affirm the District Court’s grant of summary
judgment in Huber’s favor on that claim.
19
C. Class Considerations
Finally, SAI contends that even if Huber could bring an
individual claim under the FDCPA, the District Court erred in
permitting her suit to proceed on behalf of a class whose
members may or may not have individual standing. We
consider SAI’s challenges, first, to the justiciability of the class
action for the unnamed class members’ lack of standing and,
second, to Huber’s ability to satisfy the requirements of
Federal Rule of Civil Procedure 23.
1. Justiciability
According to SAI, Huber failed to establish that the
unnamed class members individually have standing because
she did not “present any evidence that [they] acted to their
detriment after receiving a letter from SAI in the same form as
the [challenged] Letter.” Opening Br. 14. And absent that
showing of individual standing, SAI asserts, Huber’s suit is
nonjusticiable under Article III. We consider both arguments
below.
i. The Standing of the Unnamed Class
Members
The District Court generalized from Huber’s own
injury, holding that all unnamed class members also had
standing because their receipt of SAI’s letter would
“inevitably” cause them similar financial harm to Huber. App.
48. Our dissenting colleague appears to go further and to
believe that no individualized determination of standing is
necessary for the class members (or Huber, for that matter)
because Congress, in creating a private right of action under
the FDCPA, ensured their injuries were “concrete[].” Dissent
at 11. We cannot agree with either analysis.
We part ways with the District Court because Huber did
not present evidence that any class member other than herself
suffered a “consequential action or inaction” as a result of
receiving SAI’s letter. App. 47. The District Court correctly
observed that Congress “may not simply enact an injury into
existence,” so regardless of whether the defendant violated the
law, the plaintiff must establish that she herself suffered a
20
concrete harm. App. 44 (quoting TransUnion, 141 S. Ct. at
2205). But neither theory of standing can float the entire class.
Just as Huber did not suffer an informational injury, neither did
these class members, so the informational injury doctrine
cannot support their standing. Kelly, 47 F.4th at 214. And
while the District Court found that Huber had experienced
specific “financial consequences” as a result of SAI’s letter,
App. 47—rendering her injury analogous to the harm
associated with fraudulent misrepresentation and thus concrete
for purposes of Article III—it could not make such findings as
to any other class member because Huber offered no such
evidence.
Some class members may not have been confused at all;
some may have been confused but nonetheless paid the correct
sum; and some may have cleared up their confusion with a
glance at their prior notices. It is also true that some, like
Huber, may have suffered sufficiently concrete harm, financial
or otherwise, to satisfy Article III. But standing cannot be
based on speculative injury. See Clapper v. Amnesty Int’l USA,
568 U.S. 398, 409 (2013); Thorne, 980 F.3d at 893 (explaining
that standing will not be found when the “alleged harm, even
if concrete, is hypothetical or conjectural”). So while the
District Court correctly recognized that mere “receipt of a
misleading or deceptive collection letter,” without some
“consequential action or inaction following [that] receipt,”
would be insufficient to establish informational harm, App. 47,
it was too quick to assume that financial harm was an
“inevitable consequence[]” for each and every class member,
App. 49.
We part ways with our dissenting colleague to the
extent she rejects the need for individualized inquiry and
asserts that, because SAI’s letter violated the FDCPA, any
and all recipients of the letter automatically have standing to
bring suit. But that position misapprehends the fundamental
distinction between “statutory standing” and Article III
standing. According to the dissent, a plaintiff has standing to
bring a claim based on a cause of action created by Congress
whenever Congress has “impose[d] a statutory prohibition
and grant[ed] a plaintiff a cause of action to sue over a
‘defendant’s violation of that statutory prohibition or
obligation,’” Dissent at 1–2 (quoting TransUnion, 141 S. Ct.
21at 2204). Harm is “concrete[]” simply because “Congress
has provided a remedy.” Id. at 14. And a plaintiff’s standing
depends on “harm to the interest that [Congress sought] to be
protected, not actual harm to the plaintiff.” Id. at 11; see also
id. at 13 (stating that “what actually happened to Ms. Huber[]
. . . and what happened to every plaintiff in the class,” is
“irrelevant” because there is no requirement that we consider
“the actual impact or consequences of the violation on a
particular plaintiff”). From these premises, the dissent
concludes that here, because Congress wanted “debtors to be
protected from misleading information from collection
agencies,” the receipt of misleading information—in and of
itself—effects a concrete injury, without any need for
individualized inquiry. Id. at 15.
The Supreme Court has repudiated each of those
premises. In Spokeo, the Court expressly “rejected the
proposition that ‘a plaintiff automatically satisfies the injury-
in-fact requirement whenever a statute grants a person a
statutory right and purports to authorize that person to sue to
vindicate that right.’” TransUnion, 141 S. Ct. at 2205
(quoting Spokeo, 578 U.S. at 341). In TransUnion, it
explained that Congress’s creation of a statutory remedy does
not make harm “concrete”; what matters is whether the
particular plaintiff has suffered “any physical, monetary, or
cognizable intangible harm traditionally recognized” in
common law. Id. at 2206; see id. (concrete injury is required
“[e]ven if Congress affords . . . a cause of action (with
statutory damages available) to sue over [a] defendant’s legal
violation”). It also made clear that actual or imminent injury
to the plaintiff herself is the sine qua non of standing—
requiring that a plaintiff “seek[s] to remedy . . . harm to
herself” and not “merely . . . to ensure a defendant’s
‘compliance with regulatory law.’” Id. (quoting Spokeo, 578
U.S. at 345 (Thomas, J., concurring)).
The dissent is therefore mistaken that Congress can
create not just the right, but Article III standing to enforce it,
simply by legislating an “interest to be protected . . . in not
receiving false or misleading information,” Dissent at 12, or
that Congress’s desire to protect that interest—in the absence
of any detrimental consequence to the prospective plaintiff—
imbues that plaintiff with standing in “the same way as
22
common law sought to protect people from fraudulent
misrepresentations,” id. at 15. It is precisely because
Congress “may not . . . us[e] its lawmaking power to
transform something that is not remotely harmful into
something that is,” TransUnion, 141 S. Ct. at 2205, that any
plaintiff alleging intangible harm must show an actual or
imminent injury “with a close relationship to harms
traditionally recognized as providing a basis for lawsuits in
American courts,” 8 id. at 2204.
In TransUnion, the cognizable harm from wrongly
identifying the class members as potential terrorists was akin
to the harm from defamation. Id. at 2208–09. In Horizon, the
cognizable harm from the unauthorized release of the
plaintiffs’ sensitive information was akin to the harm from
invasion of privacy, Horizon, 846 F.3d at 639–40, as was the
disclosure of the plaintiff’s financial information in St. Pierre,
898 F.3d at 357–58, and the intrusion of an unauthorized
robocall in Susinno, 862 F.3d at 351–52 & n.3. 9 Here,
8
Although we made the broader statement in Horizon that
Congress “has the power to define injuries . . . that were
previously inadequate in law,” 846 F.3d at 638, the dissent
places more weight on that statement than it can bear, Dissent
at 3–4. First, we still assured ourselves in Horizon that the
injury at issue “ha[d] a close relationship” to “invasion of
privacy,” which “has traditionally been regarded as providing
a basis for a lawsuit in English or American courts.” Horizon,
846 F.3d at 639–40 (quoting Spokeo, 578 U.S. at 341). Second,
the Supreme Court later clarified in TransUnion that a
congressionally defined injury lacking a common-law
analogue would not suffice for Article III purposes.
TransUnion, 141 S. Ct. at 2206.
9
The dissent attaches significance to the fact that we
recognized a concrete injury in Horizon without requiring that
the plaintiffs’ stolen data be “actually used to the plaintiffs’
detriment.” Dissent at 3. But again, this appears to reflect
doctrinal confusion—this time between the requirement that an
injury be “concrete and particularized” and the requirement
that it be “actual or imminent.” Lujan, 504 U.S. at 560
(quotation omitted). The question of whether the data was
already used to plaintiffs’ detriment in Horizon went to
23
however, the only harm that we can say with certainty was
suffered by the unnamed class members is the receipt of
misleading information.
Even assuming arguendo that the receipt of that
information actually confused each and every class member,
confusion, without more, is not “harm traditionally
recognized as providing a basis for [fraudulent
misrepresentation] in American courts.” TransUnion, 141 S.
Ct. at 2206; see Island Insteel Sys., Inc. v. Waters, 296 F.3d
200, 212–13 (3d Cir. 2002); Restatement (Second) of Torts
§§ 525, 549. Nor has Huber identified any other tort that
would make the mere receipt of misleading information akin
to an “intangible harm traditionally recognized” in common
law. TransUnion, 141 S. Ct. at 2206. The need for
individualized inquiry to determine the standing of the
unnamed class members thus stems not from our requirement
that plaintiffs prove reliance as “an element of a cause of
action for fraudulent misrepresentation,” Dissent at 8, but
from Article III’s requirement of a concrete injury to establish
standing, see TransUnion, 141 S. Ct. at 2204.
ii. Consequences for Justiciability
That uncertainty, however, does not render the class
action itself non-justiciable. To the contrary, we have held that
“the ‘cases or controversies’ requirement is satisfied so long as
a class representative has standing, whether in the context of a
imminence, not concreteness, see 846 F.3d at 634, 639 n.19
(discussing plaintiffs’ alternative argument that, even if they
had not yet suffered a concrete injury, the data breach put them
at “imminent . . . risk of harm” for identify fraud), and later
cases have made the distinction even clearer; compare Reilly
v. Ceridian Corp., 664 F.3d 38, 46 (3d Cir. 2011) (declining to
find that plaintiffs had standing because, while a data breach
may have exposed their personal data to misuse by third
parties, “[s]uch misuse is only speculative—not imminent”),
with Clemens v. ExecuPharm Inc., 48 F.4th 146, 156–57 (3d
Cir. 2022) (finding injury “imminent” in the data breach
context when a “known,” “sophisticated ransomware group”
had already demanded ransom and published the named
plaintiff’s data on the “Dark Web”).
24
settlement or litigation class.” Neale v. Volvo Cars of N. Am.,
LLC, 794 F.3d 353, 362 (3d Cir. 2015); see also Mielo v.
Steak ’n Shake Operations, Inc., 897 F.3d 467, 478 (3d Cir.
2018) (same). And the Supreme Court has remarked that
“federal courts lack jurisdiction if no named plaintiff has
standing.” Frank v. Gaos, 139 S. Ct. 1041, 1046 (2019)
(emphasis added).
SAI urges us to depart from Neale and Mielo based on
TransUnion’s purported requirement that each unnamed class
member have standing for a class action to present a justiciable
case or controversy. But SAI misapprehends TransUnion,
which held only that individual standing was required for a
class member to obtain damages. As the Supreme Court
explained: “Every class member must have Article III standing
in order to recover individual damages. ‘Article III does not
give federal courts the power to order relief to any uninjured
plaintiff, class action or not.’” 141 S. Ct. at 2208 (emphasis
added) (quoting Tyson Foods, Inc. v. Bouaphakeo, 577 U.S.
442, 466 (2016) (Roberts, C.J., concurring)). The Court also
underscored the limited scope of its holding in a footnote,
clarifying: “We do not here address the distinct question
whether every class member must demonstrate standing before
a court certifies a class.” Id. at 2208 n.4 (citing Cordoba v.
DIRECTV, LLC, 942 F.3d 1259, 1277 (11th Cir. 2019)).
TransUnion suggests that the need for unnamed class
members to demonstrate Article III standing depends on the
stage of litigation. At the remedial phase, each class member
must establish standing to recover individual damages. See id.
at 2208. By contrast, at certification, the standing of individual
class members may inform whether a proposed class satisfies
the requirements of Federal Rule of Civil Procedure 23, see
infra; see also Neale, 794 F.3d at 368, but it is not necessary
for each member to prove his or her standing for the class
action to be justiciable, TransUnion, 141 S. Ct. at 2208 n.4.
We therefore abide by Neale’s precept that “so long as
a named class representative has standing, a class action
presents a valid ‘case or controversy’ under Article III.” 794
F.3d at 369. In doing so, we respect stare decisis by
“assum[ing] that the law is stable unless there is clear precedent
to the contrary. And that means that we do not assume that the
25
Supreme Court has altered the law unless it says so.” Horizon,
846 F.3d at 638. Our cases since TransUnion have similarly
hewed to Neale and Mielo, albeit without explicitly grappling
with the Supreme Court’s remarks on standing in class actions.
See Boley v. Universal Health Servs., Inc., 36 F.4th 124, 133
(3d Cir. 2022); Duncan v. Governor of V.I., 48 F.4th 195, 203
(3d Cir. 2022); Clemens, 48 F.4th at 153 n.4.
Because Huber has Article III standing, her proposed
class action presents a justiciable case or controversy even
though some unnamed class members may lack standing.
2. Certification
On the other hand, the possibility that some unnamed
class members lack standing may prevent certification under
Federal Rule of Civil Procedure 23. While TransUnion left
open “whether every class member must demonstrate
standing before a court certifies a class,” 141 S. Ct. at 2208 n.4
(citing Cordoba, 942 F.3d at 1277), our precedent supplies an
answer to that query: We do not “requir[e] Article III standing
of absent class members” prior to certification, but the
potential inclusion of some members without standing in a
class can result in “legitimate Rule 23 challenges.” Neale, 794
F.3d at 367–68.
SAI raises three certification challenges here,
contending Huber’s failure to establish unnamed class
members’ standing means her proposed class cannot satisfy the
commonality, typicality, and predominance requirements of
Federal Rule of Civil Procedure 23. We address each objection
in turn.
The commonality prerequisite to certification derives
from Federal Rule of Civil Procedure 23(a)(2)’s insistence that
there be “questions of law or fact common to the class.” Fed.
R. Civ. P. 23(a)(2). According to SAI, Huber’s class does not
satisfy commonality because Huber has not shown that “she
and the class members suffered the same injury.” Reply Br. 19
(citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349–50
(2011)). Here, SAI conflates the common injury the Supreme
Court demanded in Dukes for purposes of Federal Rule of Civil
Procedure 23(a)(2) with the injury-in-fact component of
26
standing. As Dukes explained, class members suffer a
common injury for Rule 23(a)(2) when their claims “depend
upon a common contention . . . capable of classwide
resolution.” 564 U.S. at 350. Huber’s suit raises a common
contention as to every class member—namely, that the form
collection letter they all received violates 15 U.S.C. § 1692e.
Cf. Dukes, 564 U.S. at 350 (observing a class would satisfy
commonality by asserting, for example, “discriminatory bias
on the part of the same supervisor”). The class thus asserts a
“common contention” and so shares common questions of law
or fact for Rule 23(a)(2) purposes. Id.Next, SAI suggests the class founders on the
requirement that Huber’s “claims or defenses . . . [be] typical
of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3).
Huber’s claim is atypical, according to SAI, because Huber has
not submitted evidence of the specific detrimental
consequences unnamed class members experienced after
receiving the form collection letter. Yet the typicality
requirement merely serves to ensure that class representatives
do not have “unique interests that might motivate them to
litigate against or settle with the defendants in a way that
prejudices the absentees,” Duncan, 48 F.4th at 207 (quotation
omitted), and here the merits of Huber’s FDCPA claim are
identical to those of the unnamed class members’, 10 see Boley,
36 F.4th at 134 (“[A] violative practice can support a class
action embracing a variety of injuries so long as those injuries
can all be linked to the practice.”). As a result, Huber’s
interests are “sufficiently aligned with those of the class” to
satisfy typicality. Id.
In a last challenge to certification, SAI contends that the
individualized questions regarding unnamed class members’
standing will overwhelm common questions, such that Huber
cannot meet the predominance requirement of Federal Rule of
Civil Procedure 23(b)(3) (stating “questions of law or fact
10
Nor is she “subject to a defense that is both inapplicable to
many members of the class and likely to become a major focus
of the litigation.” Duncan, 48 F.4th at 207 (quoting In re
Schering Plough Corp. ERISA Litig., 589 F.3d 585, 599 (3d
Cir. 2009)).
27
common to class members [must] predominate over any
questions affecting only individual members”).
The predominance inquiry “asks whether the common,
aggregation-enabling, issues in the case are more prevalent or
important than the non-common, aggregation-defeating,
individual issues.” Ferreras v. Am. Airlines, Inc., 946 F.3d
178, 185 (3d Cir. 2019) (quoting Tyson, 577 U.S. at 453). To
answer that question, “court[s] must look first to the elements
of the plaintiffs’ underlying claims . . . through the prism of
Rule 23” to assess whether the class members can prove their
claims with “evidence that is common to the class rather than
individual to its members.” Reinig v. RBS Citizens, N.A., 912
F.3d 115, 127–28 (3d Cir. 2018) (quotations omitted). But “the
presence of individual questions does not per se rule out a
finding of predominance.” In re Prudential Ins. Co. Am. Sales
Prac. Litig. Agent Actions, 148 F.3d 283, 315 (3d Cir. 1998).
Rather, as the Supreme Court has counseled:
When “one or more of the central issues in the
action are common to the class and can be said
to predominate, the action may be considered
proper under Rule 23(b)(3) even though other
important matters will have to be tried
separately, such as damages or some affirmative
defenses peculiar to some individual class
members.”
Tyson, 577 U.S. at 453 (quoting 7AA Charles A. Wright et al.,
Federal Practice and Procedure § 1778 (3d ed. 2005)).
No doubt, predominance concerns can arise when
unnamed class members must submit individualized evidence
to satisfy standing and recover damages. We have previously
recognized as much, see Neale, 794 F.3d at 368 (explaining
that differences between injuries suffered by class members
can “affect . . . predominance analyses”), as did the Supreme
Court in tacitly endorsing the Eleventh Circuit’s decision in
Cordoba, see TransUnion, 141 S. Ct. at 2208 n.4 (citing
Cordoba, 942 F.3d at 1277). Although the named plaintiff in
Cordoba had Article III standing, 942 F.3d at 1271, the
evidence in the record was inconclusive as to the proportion of
unnamed class members who could make a similar showing,
28
id. at 1275. To recover damages, the Eleventh Circuit
explained, unnamed class members would have to submit
individualized evidence of their standing. Id. at 1274.
Depending on the number of class members able to satisfy that
burden and the difficulty of identifying those class members,
“individualized determinations might overwhelm issues
common the class,” id. at 1275, so the district court needed “to
address whether common issues predominate under Rule
23(b)(3) when this [standing] issue is baked into the analysis,”
id. at 1277. Accordingly, the Eleventh Circuit vacated the class
certification order and remanded.
Like the Eleventh Circuit in Cordoba, we conclude that
remand is necessary here owing to the lack of evidence in the
record indicating how many members of Huber’s class are
likely to have standing and how burdensome that showing will
be for both the District Court and the parties. Because the
District Court decided that Huber and the unnamed members
of her class suffered informational injuries, the Court had no
occasion to consider how individualized evidence of unnamed
class members’ standing would affect the balance of common
versus individual issues for purposes of predominance, or what
proportion of the class could be expected to establish standing.
Thus, the District Court must assess the implications of those
individualized showings for the predominance requirement of
Federal Rule of Civil Procedure 23(b)(3). 11 See Neale, 794
F.3d at 368.
On remand, Huber should submit evidence enabling the
District Court to estimate “how many class members (or what
proportion of them)” have standing. 12 Cordoba, 942 F.3d at
11
Although SAI does not contest Huber’s ability to satisfy
numerosity under Federal Rule of Civil Procedure 23(a)(1), a
plaintiff cannot satisfy that requirement by “resorting to mere
speculation.” Mielo, 897 F.3d at 484. Thus, on remand, the
District Court should also consider the implications of
unnamed class members’ potential lack of standing for the
numerosity requirement.
12
At the certification stage, Huber need not prove the exact
number of class members who have standing. Instead, as often
is the case in assessments of the Rule 23 criteria, Huber can
29
1275. Additionally, the Court should evaluate the feasibility
of receiving individualized evidence on class members’
standing. If the Court surmises that few class members will be
able to show they undertook the kind of detrimental action or
inaction required for standing or that “it will be extraordinarily
difficult to identify those who did,” id. at 1275, then Huber’s
proposed class is not “sufficiently cohesive to warrant
adjudication by representation,” Reinig, 912 F.3d at 127
(quoting In re Hydrogen Peroxide Antitrust Litig., 552 F.3d
305, 311 (3d Cir. 2008)). By contrast, if many class members
appear likely to satisfy standing “or if there is a plausible
straightforward method to sort them out at the back end of the
case, then the class might appropriately proceed as it is
currently defined.” Cordoba, 942 F.3d at 1275.
We have no doubt that our esteemed colleague on the
District Court—given her deep familiarity with this case and
vast experience on the bench—is well-equipped to make those
determinations. We will therefore vacate the class certification
order and remand for the District Court to decide whether
Huber’s proposed class satisfies Federal Rule of Civil
Procedure 23(b)(3) notwithstanding the individualized
evidence class members must submit to demonstrate standing
and recover damages. In addition, because the District Court’s
damages award was predicated on its class certification
decision, see App. 51–52, we will also vacate that order to
enable the District Court to reassess damages, if needed to
avoid any anomalous windfall. The District Court can then
exercise its wide discretion, depending on its determinations as
to certification and the number of class members expected to
have standing and to recover damages, to ensure appropriate
amounts of both statutory damages and attorney’s fees. See 15
U.S.C. § 1692k(a)(2)–(3).
resort to any number of mechanisms to offer a sufficiently
reliable estimate of the proportion of class members who will
be able to demonstrate standing. Cf. Reinig, 912 F.3d at 128
(recognizing “representative evidence [can] satisfy the
commonality/predominance requirements of Rule 23”);
Marcus, 687 F.3d at 596 (explaining a “plaintiff [need not]
offer direct evidence of the exact number and identities of the
class members”).
30
IV. Conclusion
For the foregoing reasons, we will affirm the District
Court’s rulings that Huber has Article III standing and that
SAI’s form collection letter violated 15 U.S.C. § 1692e.
However, we will vacate the District Court’s orders certifying
Huber’s proposed class and awarding damages and will
remand for proceedings consistent with this opinion.
31
Jamie Huber v. Simon’s Agency, No. 22-2483
RENDELL, Circuit Judge, concurring in part and dissenting
in part
Jamie Huber received misleading notices from a
collection agency that, under our case law, were deceptive as a
matter of law. The same goes for members of the class
certified by the District Court. I agree with the Majority that
Huber has standing. But unlike the Majority, I adopt the
analysis that comports with our precedent and would affirm
outright without any need for a remand to examine the
propriety of the class certification. So, I part ways with the
Majority and respectfully dissent as to the proper analysis and
ultimate disposition.
The Majority’s reasoning disregards both controlling
Supreme Court precedent in Spokeo, Inc. v. Robins, 578 U.S.
330 (2016), and TransUnion LLC v. Ramirez, 141 S. Ct. 2190
(2021), and our precedent, namely our opinions in Susinno v.
Work Out World Inc., 862 F.3d 346 (3d Cir. 2017) (Hardiman,
J.), and In re Horizon Healthcare Servs. Inc. Data Breach
Litig., 846 F.3d 625 (3d Cir. 2017) (Jordan, J.). The Majority
purports to follow Spokeo and TransUnion, but it fails to
emphasize that the issue before us involves the unique question
of concreteness for purposes of determining the standing of a
plaintiff bringing a claim based on a cause of action created by
Congress. Moreover, the Majority conflates standing in such
cases with the injury required in other Article III standing
cases, focusing on the extent of harm or injury. Spokeo and
TransUnion do not ever refer to an inquiry along these lines.
This is a distinct type of standing, as we afford “due respect”
to Congress’s decision to impose a statutory prohibition and
grant a plaintiff a cause of action to sue over a “defendant’s
1
violation of that statutory prohibition or obligation.”
TransUnion, 141 S. Ct. at 2204 (citing Spokeo, 578 U.S. at
341). This “respect” means that we allow Congress to provide
a remedy to plaintiffs in certain situations where they might not
have satisfied the traditional notions of harm required at
common law. Congress “has the power to define injuries that
were previously inadequate in law.” Horizon, 846 F.3d at 638
(internal quotation marks omitted) (quoting Spokeo, 578 U.S.
at 341). Otherwise, why create a special test for “concreteness”
in these cases?
The analysis in this situation is quite specific and
straightforward. We ask whether the claim vindicates a right
traditionally recognized at common law (i.e., is there a
common law analog?) taking into account Congress’s view
regarding the need to vindicate that right. 1 We must also make
sure that the situation actually implicates the interest to be
protected so that a plaintiff is not simply complaining of a
“bare procedural violation” of a statute unconnected to any
impact on her. Spokeo, 578 U.S. at 342. Checking these boxes
leads to a plaintiff’s satisfying the “concreteness” test for
standing to pursue a congressionally created claim based on an
alleged intangible harm. “Case closed”—or, actually,
1
This is an abbreviated version of what the Supreme Court
outlined in both Spokeo and TransUnion. See Spokeo, 578
U.S. at 340–41; TransUnion, 141 S. Ct. at 2204–05. In
Horizon, Judge Jordan provided a thorough explanation of
Spokeo’s reasoning, see 846 F.3d at 636–39, which Judge
Hardiman relied upon in Susinno, see 862 F.3d at 350–51. A
few years later, TransUnion expanded further, but it did so
consistent with Spokeo.
2
opened—because Huber’s claim meets this test, as I discuss
more fully below.
We performed this analysis correctly in Horizon and in
Susinno.
In Horizon, plaintiffs’ laptops containing highly
sensitive and private personal information were stolen. 846
F.3d at 630. The complaint alleged that their insurance
company, Horizon, failed to maintain the confidentiality of the
plaintiffs’ information, giving rise to a cause of action under
the Fair Credit Reporting Act (FCRA). Id. at 629. It did not
allege that the false information was actually used to the
plaintiffs’ detriment. Id. The district court had dismissed the
case, concluding that “standing requires some form of
additional ‘specific harm’ beyond ‘mere violations of statutory
and common law rights.’” Id. at 634. We reversed based on
our own precedent in In re Google Inc. Cookie Placement
Consumer Priv. Litig., 806 F.3d 125 (3d Cir. 2015), and In re
Nickelodeon Consumer Priv. Litig., 827 F.3d 262 (3d Cir.
2016), citing the principle that “Congress has long provided
plaintiffs with the right to seek redress for unauthorized
disclosures of information that, in Congress’s judgment, ought
to remain private.” Horizon, 846 F.3d at 636 (quotation marks
omitted) (quoting Google, 806 F.3d at 274). We noted that
Spokeo did not compel a different outcome and commented on
Spokeo’s recognition of Congress’s role:
We reaffirm that conclusion today.
Spokeo itself does not state that it
is redefining the injury-in-fact
requirement. Instead, it
reemphasizes that Congress “has
the power to define injuries that
were previously inadequate in
3
law.” In the absence of any
indication to the contrary, we
understand that the Spokeo Court
meant to reiterate traditional
notions of standing, rather than
erect any new barriers that might
prevent Congress from identifying
new causes of action though they
may be based on intangible harms.
Id. at 638 (internal citations omitted) (quoting Spokeo, 578
U.S. at 341). And in Susinno, we summarized Horizon’s rule
as follows:
When one sues under a statute
alleging “the very injury [the
statute] is intended to prevent,”
and the injury “has a close
relationship to a harm . . .
traditionally . . . providing a basis
for a lawsuit in English or
American courts,” a concrete
injury has been pleaded.
862 F.3d at 351 (quoting Horizon, 846 F.3d at 639–40)
(alteration in original). We then proceeded to conclude that the
plaintiff in Susinno had pled a concrete, albeit intangible,
injury by complaining of one prerecorded call and voice
message to her cellular telephone that violated the Telephone
Consumer Protection Act (TCPA):
Where a plaintiff’s intangible
injury has been made legally
cognizable through the democratic
process, and the injury closely
4
relates to a cause of action
traditionally recognized in English
and American courts, standing to
sue exists.
Id. at 352.
After we decided Horizon and Susinno, the Supreme
Court revisited, and reiterated, the appropriate test in
TransUnion. There, the plaintiffs complained of “misleading”
alerts in their credit reports that indicated each of the plaintiffs
was a “potential match to names on the OFAC list [of
suspected terrorists].” TransUnion, 141 S. Ct. at 2202. This
was based on the credit reporting agencies’ matching first and
last names against the list. The Supreme Court once again laid
out the test for “concreteness” of an intangible harm,
explaining that the harm experienced by “the 1,853 class
members whose reports [containing potentially misleading
information] were disseminated to third parties suffered a
concrete injury in fact under Article III” because “the harm
from a misleading statement . . . bears a sufficiently close
relationship to the harm from a false and defamatory
statement.” Id. at 2209 (emphasis added). End of analysis. As
the Majority points out, the other class of plaintiffs in
TransUnion, whose reports were not disseminated, did not
suffer a concrete injury because there was “no historical or
common law analog where the mere existence of inaccurate
information, absent dissemination, amounts to concrete
injury.” TransUnion, 141 S. Ct. at 2209 (quoting Owner-
Operator Indep. Drivers, Inc. v. U.S. Dep’t of Transp., 879
F.3d 339, 344–45 (D.C. Cir. 2018)) (quotation marks omitted).
The Majority states that the distinction between the plaintiffs
whose misleading reports were sent and plaintiffs whose
misleading reports were not “brought needed clarity to the
5
proper treatment of Article III standing.” Maj. Op., Section
III.A.3, supra. It then expands on the need for a “personal
stake.” I agree. Here, if the misleading notice had never been
sent to Huber, she would have no claim. Or, if, as the
Majority’s quotation from TransUnion notes, Huber had no
personal stake because she was only pursuing a mere
procedural violation with no connection to her she would lack
standing. 2 But no one has contended that Huber lacks a
personal stake or is pursuing a mere procedural violation. 3
2
Indeed, to make this point, the Supreme Court considered a
hypothetical Hawaii resident complaining of a factory’s
environmental pollution of a Maine resident’s land—in such a
situation, the Hawaii resident would have no standing to sue
the factory. TransUnion, 141 S. Ct. at 2205–06.
3
The Majority returns later in its opinion to TransUnion’s
distinction between the “sent” report and “non-sent” report
plaintiffs as if it supports its argument regarding the need for
harmful consequences, but it really has no bearing on that
issue. Maj. Op., Section III.A.3, supra. Indeed, the quotations
it uses from TransUnion that purportedly support its position
regarding the need for consequences (i.e., its assertion that the
“mere receipt” of a misleading communication is not enough
and its statement that the mere risk that a plaintiff who receives
a misleading letter from a debt collector will suffer such a
cognizable injury is “too speculative to support Article III
standing”) are from TransUnion’s rejection of the argument
that the non-sent report plaintiffs should have standing because
there is a risk that the reports might be sent. That is the
“speculation” it is discussing. As Justice Kagan recently
advised, “when you see that my description of precedent
differs from the majority’s go take a look at the decision. . . .
I’ll take my chances on readers’ good judgment.” Andy
6
The Majority quotes TransUnion regarding the need to
find a “sufficiently close relationship” between a statutory
harm and a common law harm, but it fails to heed the Supreme
Court’s essential conclusion: once a close relationship is found
with a common law analog, the plaintiff has standing because
the injury is concrete as a matter of law. Rather than reasoning
along these lines and asking, “does the harm from a misleading
communication from a collection agency have a sufficiently
close relationship to the harm from a fraudulent
misrepresentation?” (the answer is, yes), the Majority focuses
on “consequences” flowing from the receipt of a misleading
communication and asserts that there is no match, or “close
relationship,” because to state a claim for fraudulent
misrepresentation the plaintiff must have detrimentally relied
on the communication, i.e., there must be some “further
consequence.” Maj. Op. Section III.A.3., supra. To analogize
to the tort of fraudulent misrepresentation, the Majority
concludes, a § 1692e claimant must suffer some cognizable
harm that flows from the confusion that attends her receipt of
the misleading communication.
But in TransUnion, the Court noted that “[i]n looking to
whether a plaintiff’s asserted harm has a ‘close relationship’ to
a harm traditionally recognized as providing a basis for a
lawsuit in American courts, we do not require an exact
duplicate.” Id. Bearing that principle in mind, the Court
concluded that saying someone was a “potential terrorist” was
“sufficiently close” to saying that he is an actual terrorist so as
to be analogized to defamation. Id. In truth, the statement was
more misleading than defamatory. If the Supreme Court had
Warhol Found. for Visual Arts, Inc. v. Goldsmith, No. 21-869,
598 U.S. ____, ____ (slip op. at 4, n.2) (2023) (Kagan, J.,
dissenting).
7
wanted the relationship to defamation to be something more
than “sufficiently close,” the analogy may not have worked
because truth might have been a defense. Indeed, based on the
matching of the names, the “potential match” was true (i.e., the
name “Susan Smith” appeared on the OFAC list). Moreover,
a match may have been true for some plaintiffs (i.e., if the
“Susan Smith” identified by the credit report was, in fact, the
same “Susan Smith” identified on the OFAC list). So, the
element of falsity normally associated with defamation was
tenuous at best. That did not concern the Court: an exact
match to the common law cause of action is not required.
The Majority here appears to heed our, and the Supreme
Court’s, directives by analogizing Huber’s situation to the
common law tort of fraudulent misrepresentation:
Huber asserts that the receipt of
deceptive collection letters meets
that test, because the common law
has long reflected an interest in
avoiding the harms inherent to
receiving misleading information.
We take this as an oblique
reference to the tort of fraudulent
misrepresentation and agree it is an
apt analogue. Like fraudulent
misrepresentation, a § 1692e
violation involves deception[,] and
the statutory prohibition on the use
of any false, deceptive, or
misleading representation or
means in connection with the
collection of any debt protects
8
essentially the same interests as
that traditional cause of action.
Maj. Op., Section III.A.3, supra (cleaned up and bracketed
alteration added). The Majority should have ended its
reasoning there and concluded with a statement similar to the
one that the Supreme Court made in TransUnion: “In short, a
plaintiff who received a misleading statement regarding the
amount of the debt she owes suffered a concrete injury in fact
under Article III.” Instead, the Majority considers two
unnecessary issues: first, whether there has been some
“consequential action or inaction following receipt of [the]
misleading or deceptive collection letter,” Maj. Op., Section
III.A.3, i.e., did the plaintiffs detrimentally rely on the
misleading information? And second, what was the extent of
the harm caused by the detrimental reliance?
As to the first inquiry, action in reliance on the
misrepresentation is an element of a cause of action for
fraudulent misrepresentation. But in discussing the common
law analog in Horizon, we specifically rejected any notion that
a plaintiff’s allegations need to state a cause of action:
We are not suggesting that
Horizon’s actions would give rise
to a cause of action under common
law. No common law tort
proscribes the release of truthful
information that is not harmful to
one’s reputation or otherwise
offensive.
Horizon, 846 F.3d at 639. Although the Majority quotes this
language from Horizon, it proceeds to disregard it by focusing
its attention on the proposition that “until a deception occurs—
9
unless and until there is reliance by the victim—the tort of
fraud has not been committed.” Maj. Op., Section III.A.3,
supra. In Horizon, the personal information that was on the
stolen computers was not false, so there really was no cause of
action at common law for the employers’ failure to safeguard
the plaintiffs’ personal information. But we reasoned that the
‘intangible harm’ that the FCRA seeks to remedy had a
sufficiently close relationship to a harm—invasion of
privacy—that has traditionally been regarded as providing a
basis for a lawsuit in English and American courts. It was a
stretch to say that the insurer, by being negligent in keeping the
information sufficiently secure, had invaded its members’
privacy. No matter; the harm was close enough based on the
interest to be protected. And in Susinno, we reiterated that the
focus should be on the interest to be protected:
[A] close relationship does not
require that the newly proscribed
conduct would “give rise to a cause
of action under common law.” But
it does require that newly
established causes of action
protect essentially the same
interests that traditional causes of
action sought to protect.
Susinno, 862 F.3d at 351 (internal citation omitted) (emphasis
added). To be clear, the historical analysis in Susinno centered
on the link between the common law analog and the statutory
cause of action itself—not any specific theory of liability under
the statute. The plaintiff’s allegation of receiving a single
unwanted robocall amounted to an unadorned, garden-variety
TCPA claim. We still concluded that the mere violation of the
TCPA provision at issue worked a sufficiently concrete injury
10
for Article III standing. So, our precedent leaves no room to
ask for more than that in this case.
In TransUnion, the Court analogized the asserted harm
to the harm of defamation looking only at the dissemination of
misleading information, and it respected Congress’s decision
to protect an individual’s interest in not having misleading
information disseminated by credit reporting agencies. While
the Majority says there must be “reputational or emotional
harm,” Maj. Op., Section III.A.3., the Court in TransUnion did
not concern itself with whether the information was false, or
whether anyone receiving the report actually read it or denied
credit to the plaintiffs, or whether there was harm to plaintiffs’
reputations—all relevant considerations in a defamation case.
Rather, the Court was concerned with the interest at stake, not
with mirroring the cause of action.
By adding a requirement of consequences resulting
from reliance, the Majority drastically limits the remedy
Congress provided, undermining Congressional policy and the
separation of powers. As we noted in Sussino, this is a matter
for the democratic process. Furthermore, not only is the
imposition of this reliance element contrary to precedent, but
the error of imposing this element is compounded by the
Majority’s holding that the predominance inquiry of the class
action certification analysis cannot be conducted unless and
until the District Court inquires into whether each class
member did or did not detrimentally rely on the defendant’s
misleading collection letter, and the extent of harm. This is not
only analytically incorrect, but it also dooms all class actions
11
under § 1692e of the FCRA. 4 This undermines the statutory
scheme.
Once the relationship to common law is found, there is
no place for further inquiry, let alone any inquiry into the extent
of the harm. This is the Majority’s second error. The Majority
insists upon “further consequences” that follow from the
detrimental reliance and opines that “confusion, without more,
is not a concrete injury.” Maj. Op., Section III.A.3, supra.
4
Moreover, I am not sure as a practical matter what such an
inquiry will “look like.” The Majority states only that, on
remand, Huber should submit evidence that would allow the
District Court to estimate how many class members have
standing, yet it also suggests that the District Court could
potentially find that receiving individualized evidence on class
members’ standing is not feasible. Maj. Op. Section III.C.2,
supra. Beyond that guidance, what is the District Court to do
on remand? Are the class members to be asked if they
detrimentally relied on the misleading notice? What does
“detrimentally relied on” mean? Are the negative
consequences here really “detrimental reliance” or just obvious
consequences? What would a class member need to have done
to satisfy this requirement? What if they lost sleep? Or
suffered from anxiety? Why does it matter? The harm that
Congress sought to prevent was the harm experienced by the
receipt of misleading information by debtors. If the
information is misleading as a matter of law—as this was—
presumably the debtor was deceived. That is the same harm
that an action for fraudulent misrepresentation was aimed at, at
common law. That is all we need to know for purposes of
standing. Why do we need to know what the debtor did after
receiving the misleading letter? What if they did nothing
because they did not know what to do? It matters not.
12
However, as I have explained, as long as an analog is
identified, plaintiffs have “suffered a concrete injury in fact
under Article III,” whether or not plaintiff is subjectively
confused. TransUnion, 141 S. Ct. at 2209. Confusion is a red
herring. 5 When we speak of harm in this context, we speak of
the harm envisioned by Congress, i.e., “a harm . . . traditionally
. . . providing a basis for a lawsuit in English or American
courts.” Sussino, 862 F.3d at 351 (quoting Horizon, 846 F.3d
at 639–40). It is the harm to the interest that is to be protected,
not actual harm to the plaintiff. Otherwise, why would the
Supreme Court and we not have considered actual harm in the
precedents we rely on? The Majority’s focus on finding a
tangible harm, and determining the extent of this harm and
injury—a sort of “analog plus” analysis—is misplaced.
The Majority seems to reject the notion that an
intangible harm can be concrete but that is what TransUnion is
all about. TransUnion, 141 S. Ct. at 2204 (“Various intangible
harms can also be concrete.”). The intangible harms at the
core of all of the statutory causes of action we have been
describing confer standing without proof of tangible injury.
See id. (gathering examples). So, the Majority’s “analog plus”
analysis, which insists upon proof of tangible harm is at odds
with the precedents that are our guide.
5
The District Court also seemed confused by the issue of
confusion, but it ultimately reasoned more along the lines of
the inevitable nature of harm here: “In matters of debt
collection, informational harm leads to financial harm.” Huber
v. Simon’s Agency, Inc., Civ. A. No. 2:19-01424, 2022 WL
1801497, at *4 (E.D. Pa. June 2, 2022). This is the judgment
that Congress made, and we need not inquire further.
13
Instead, we should look at the interest that Congress
sought to protect and ask whether there is similarity between
that interest and the interest that common law sought to protect.
So, too, here, the interest to be protected is the interest
in not receiving false or misleading information, and the harm
of a misleading communication from a collection agency to a
debtor regarding the amount that is owed has a close
relationship to the harm caused by a fraudulent
misrepresentation at common law. 6 As I noted above, the
Majority says so itself.
6
Our analysis in Susinno also confirms that statutory causes of
action can have multiple analogs and that a plaintiff has
standing as long as the court can identify one that fits—
whether or not the plaintiff does so. Thus, even though we
thought intrusion upon seclusion was the best analog, we
agreed with the Ninth Circuit “that TCPA claims closely relate
to [other] traditional claims for ‘invasions of privacy . . . and
nuisance [which] have long been heard by American courts.’”
Susinno, 862 F.3d at 351 (quoting Van Patten v. Vertical
Fitness Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 2017))
(second alteration in original). Likewise, colleagues on our
sister courts have suggested that torts other than fraudulent
misrepresentation bear a close relationship to the interest
protected by § 1692e: intrusion upon seclusion, abuse of
process, emotional distress from negligent transmission of
misleading information, see Trichell v. Midland Credit Mgmt.,
Inc., 964 F.3d 990, 1008–09 (11th Cir. 2020) (Martin, J.,
concurring in part and dissenting in part), or intentionally or
recklessly caused emotional distress, see Pierre v. Midland
14
So, in TransUnion, the Court did not ask how harmful
it was to the plaintiff that a third party would read that he is a
potential match to the OFAC list, or what negative
consequences actually flowed from it. Instead, it concluded
that plaintiffs whose reports were disseminated had
“demonstrated concrete reputational harm” even though the
plaintiffs made no showing of any tangible harm to their
reputation. And in Susinno, we found an analog because the
plaintiff’s right of freedom from invasion of privacy was
protected at common law. Susinno, 862 F.3d at 351–52. That
was enough. We did not look to see whether the defendant’s
phone call really intruded upon the plaintiff’s privacy or how
great the intrusion was. The call may have been merely
annoying, but that did not concern us. In fact, we specifically
rejected the notion that repeated calls “with such persistence
and frequency as to amount to . . . hounding,” would be
necessary. Susinno, 862 F.3d at 351 (citation omitted). We
focused on the right Congress chose—“it sought to protect the
same interests implicated in the traditional common law cause
of action”—and found that it was traditionally worthy of
protection. Id. at 352. And, contrary to the Majority’s desire
for additional negative consequences or more harm than what
a robocall involves, we did not hesitate to find the right worthy
of protection notwithstanding that the plaintiff had received
only one robocall. Congress recognized the harm was worthy
of protection, and “Spokeo addressed, and approved, such a
choice by Congress.” Id.In no case relevant to the inquiry at hand has the
Supreme Court or our court considered the actual harm or
Credit Mgmt., Inc., 29 F.4th 934, 946–48 (7th Cir. 2022)
(Hamilton, J., dissenting).
15
extent of injury. Yet, the Majority wishes to engage with what
actually happened to Ms. Huber, what she did, and what
happened to every plaintiff in the class. But this is irrelevant
to our analysis. Standing in this type of case should be decided
as a preliminary matter, and nowhere in the jurisprudence is
there any indication that we should consider evidence
regarding the actual impact or consequences of the violation on
a particular plaintiff. 7
To ask how harmful it was to the plaintiff to receive this
misinformation is to add to the straightforward and objective
analog test that applies here. The question the Court asked in
TransUnion was whether the “harm from a misleading
statement of this kind bears a sufficiently close relationship to
the harm from a false and defamatory statement.” TransUnion,
141 S. Ct. at 2209. The answer was “yes.” And here, substitute
“fraudulent misrepresentation” for “a false and defamatory
statement” in the last phrase: does the harm from a misleading
statement from a debt collector to a debtor about the amount
7
In explaining the requirement of standing and why courts
must ensure that plaintiffs have a personal stake in the
litigation, the Majority asks rhetorically: “Why not allow any
plaintiff seeking to serve as a private attorney general to
enforce the statutory right alongside the Executive Branch?”
No doubt this question would help hone the analysis in some
cases, but not in this one. There is no dispute that Huber
received a misleading collection letter and that she suffered a
harm. She is not, thus, acting as a “private attorney general,”
she is acting on her own behalf to obtain relief for the harm she
has suffered. There is no risk in this case that Huber or any
member of the putative class are acting as private attorneys
general and the reference to this concept does little to advance
our understanding of standing in this context.
16
owed bear a sufficiently close relationship to the harm from a
fraudulent misrepresentation? The answer is “yes.” 8
Our precedent has established a specific test for
concreteness where Congress has provided a remedy. Using
that test, we should conclude that the match to the harm at issue
in the tort of fraudulent misrepresentation is more than
“sufficiently close,” and the relevant interest at stake is for
debtors to be protected from misleading information from
collection agencies, much the same way as common law
sought to protect people from fraudulent misrepresentations.
The Majority reached this very conclusion. Standing to pursue
the statutory remedy requires nothing more; our precedent says
that is enough. To require more in the name of “standing” is
unwarranted where Congress has chosen to provide a remedy
that meets the test that the Supreme Court established in
8
And even if the impact on the plaintiff were the focus, the
Majority overlooks the context of the FDCPA. The entire
premise underlying congressional action in this area is the
fragile state of debtors preyed upon by collection agencies. In
passing the FDCPA, the Senate noted that the “suffering and
anguish which [unscrupulous debt collectors] regularly inflict
is substantial.” S. Rep. No. 95-382, at 2 (1977). While we
have concluded that this was not an informational injury as
such, can there be any doubt that a misleading statement of the
amount owed leading to an inability to pay the amount due is
any less harmful than a failure to indicate an amount at all?
And just as in the context of the TCPA, we have deferred to
Congress’s judgment that one robocall is actionable because of
the interests at stake, here, too, we need to respect Congress’s
view that debtors need protection from misleading information
of this nature.
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Spokeo and TransUnion and we have followed in Horizon and
Sussino.
The Majority’s approach does mischief to the approach
that the Supreme Court and our Court have endorsed.
Therefore, I must respectfully part ways with the Majority.
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